European copyright code - Th e Wittem Project April 2010 www.copyrightcode.eu
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The Wittem Project
European copyright code
April 2010
www.copyrightcode.eu
European_Copyright_Code.indd 1 22-04-2010 17:01:08Wittem Group
Drafting Committee
Prof. Lionel Bently, Emmanuel College and CIPIL, Cambridge
Prof. Thomas Dreier, Institut für Informations- und Wirtschaftsrecht, Zentrum
für angewandte Rechtswissenschaft, Karlsruhe Institute of Technology (KIT)
Prof. Reto Hilty, Max Planck Institute for Intellectual Property, Competition
and Tax Law, Munich
Prof. P. Bernt Hugenholtz, Instituut voor Informatierecht, Universiteit van
Amsterdam
Prof. Antoon Quaedvlieg, Radboud Universiteit Nijmegen
Prof. Alain Strowel, Facultés universitaires Saint-Louis, Bruxelles
Prof. Dirk Visser, Universiteit Leiden
Advisory Board
Prof. Jon Bing, Institutt for rettsinformatikk, Universitetet i Oslo
Prof. Robert Clark, University College Dublin
Prof. Frank Gotzen, Centrum voor Intellectuele rechten, Katholieke Universiteit
Leuven
Prof. Ejan Mackaay, Université de Montréal
Prof. Marco Ricolfi, Università degli Studi di Torino
Prof. Elžbieta Traple, Uniwersytet Jagielloński w Krakowie
Prof. Michel Vivant, Université Montpellier 1
Prof. Raquel Xalabarder, Universitat Oberta de Catalunya
Secretariat
Sophie van Loon
Liza Gerritsen
2
European_Copyright_Code.indd 2 22-04-2010 17:01:08Table of Contents
Wittem Group 2
Introduction 5
Preamble 7
Chapter 1: Works 9
Art. 1.1 – Works 9
Art. 1.2 – Excluded works 10
Chapter 2: Authorship and ownership 11
Art. 2.1 – Authorship 11
Art. 2.2 – Moral rights 11
Art. 2.3 – Economic rights 11
Art. 2.4 – Limits 12
Art. 2.5 – Works made in the course of employment 12
Art. 2.6 – Works made on commission 12
Chapter 3: Moral rights 13
Art. 3.1 – General 13
Art. 3.2 – Right of divulgation 13
Art. 3.3 – Right of attribution 13
Art. 3.4 – Right of integrity 14
Art. 3.5 – Consent 14
Art. 3.6 – Interests of third parties 15
Chapter 4: Economic rights 16
Art. 4.1 – General 16
Art. 4.2 – Right of reproduction 16
Art. 4.3 – Right of distribution 17
Art. 4.4 – Right of rental 17
Art. 4.5 – Right of communication to the public 17
Art. 4.6 – Right of adaptation 18
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European_Copyright_Code.indd 3 22-04-2010 17:01:08Table of Contents
Chapter 5: Limitations 19
Art. 5.1 – Uses with minimal economic significance 19
Art. 5.2 – Uses for the purpose of freedom of expression and information 20
Art. 5.3 – Uses permitted to promote social, political and cultural objectives 20
Art. 5.4 – Uses for the purpose of enhancing competition 21
Art. 5.5 – Further limitations 22
Art. 5.6 – Relation with moral rights 22
Art. 5.7 – Amount and collection of remuneration 23
Art. 5.8 – Limitations prevailing over technical measures 23
4
European_Copyright_Code.indd 4 22-04-2010 17:01:08Introduction
This European Copyright Code is the result of the Wittem Project that was
established in 2002 as a collaboration between copyright scholars across
the European Union concerned with the future development of European
copyright law. The project has its roots in an International Network Program
run by three Dutch universities (Radboud University of Nijmegen, University
of Amsterdam and Leiden University), and sponsored by the government-
funded Dutch ITeR Program.
The aim of the Wittem Project and this Code is to promote transparency and
consistency in European copyright law. The members of the Wittem Group
share a concern that the process of copyright law making at the European
level lacks transparency and that the voice of academia all too often remains
unheard. The Group believes that a European Copyright Code drafted by legal
scholars might serve as a model or reference tool for future harmonization
or unification of copyright at the European level. Nevertheless, the Group
does not take a position on the desirability as such of introducing a unified
European legal framework.
The Code was drafted by a Drafting Committee composed of seven members
(see p. 2). Each chapter of the Code was originally drafted by one or two
members of the Drafting Committee, acting as rapporteurs. The rapporteurs
for each chapter were: Prof. Quaedvlieg (Chapter 1: Works), Prof. Hugenholtz
(Chapter 2: Authorship and ownership), Prof. Strowel (Chapter 3: Moral
rights), Prof. Visser (Chapter 4: Economic rights) and Professors Dreier and
Hilty (Chapter 5: Limitations).
Each draft Chapter, accompanied by an explanatory memorandum, was
discussed in a plenary session with the members of the Wittem Advisory
Board (see p. 2) and other experts that were invited ad hoc. The proceedings
of these plenary sessions were fed into the second versions of each chapter,
and thereafter redacted and integrated into a final consolidated version by
5
European_Copyright_Code.indd 5 22-04-2010 17:01:08the Drafting Committee. Although discussions with the Advisory Board and
experts have greatly influenced the final product, responsibility for the Code
lies solely with the Drafting Committee.
While drafted in the form of a legislative instrument and thereby exceeding
the level of detail normally associated with common principles of law, this
Code is not comprehensive. It concentrates on the main elements of any
codification of copyright: subject matter of copyright (Chapter 1), authorship
and ownership (Chapter 2), moral rights (Chapter 3), economic rights
(Chapter 4), and limitations (Capter 5). The Code does not, for instance, treat
such remuneration rights as public lending right and droit de suite, nor does
it deal with the legal protection of technical measures. Also, the Code does not
contain rules on copyright liability or enforcement, nor does it touch upon
neighbouring (related) rights and database right.
This Code is not a recodification of EU copyright law tabula rasa. Since
European copyright law must operate within the confines of the international
commitments of the European Union and its Member States, the Code takes
account of the substantive norms of the Berne Convention and the TRIPs
Agreement. Also, the members of the Group have found it hard to ignore
the aqcuis communautaire in the form of seven Directives that the European
legislature has produced in this field since 1991. However, the Code does on
occasion deviate from the acquis, and therefore cannot be considered a mere
restatement or consolidation of the norms of the directives.
The members of the Wittem Group hope that this European Copyright Code
will contribute to the establishment of a body of transparent and consistent
copyright law that protects the moral and economic interests of creators, while
serving the public interest by promoting the production and dissemination of
works in the field of literature, art and science.
6
European_Copyright_Code.indd 6 22-04-2010 17:01:08European Copyright Code
Preamble
The Wittem Group
Considering
– that the establishment of a fully functioning market for copyright
protected works in the European Union, as necessitated in particular
by the Internet as the primary means of providing information and
entertainment services across the Member States, requires common
rules on copyright in the EU that reflect and integrate both the civil and
common law traditions of copyright and authors’ right respectively;
– that twenty years of harmonization has brought only partial
harmonization on certain aspects of the law of copyright in the Member
States of the EU;
– that the consistency and transparency of the harmonized rules on
copyright in the EU ought to be improved;
– that copyright law in the EU should reflect the core principles and values of
European law, including freedom of expression and information as well as
freedom of competition;
Recognizing
– that copyright protection in the European Union finds its justification
and its limits in the need to protect the moral and economic interests of
creators, while serving the public interest by promoting the production
and dissemination of works in the field of literature, art and science by
granting to creators limited exclusive rights for limited times in their
works;
– that copyright legislation should achieve an optimal balance between
protecting the interests of authors and right holders in their works and
securing the freedom to access, build upon and use these works;
– that rapid technological development makes future modes of exploitation
and use of copyright works unpredictable and therefore requires a system
of rights and limitations with some flexibility;
7
European_Copyright_Code.indd 7 22-04-2010 17:01:08Believing that the design of a European Copyright Code might serve as an
important reference tool for future legislatures at the European and national
levels;
Taking note of the norms of the main international treaties in the field of
copyright that have been signed and ratified by the EU and its Member States,
in particular the Berne Convention, the TRIPs Agreement and the WIPO
Copyright Treaty, and of the harmonized standards set by the EC directives in
the field of copyright and related rights;
Proposes the following European Copyright Code:
8
European_Copyright_Code.indd 8 22-04-2010 17:01:08Chapter 1: Works
Art. 1.1 – Works
(1) Copyright subsists in a work1, that is to say, any2 expression3 within the
field of literature, art or science4 in so far as it5 constitutes its author’s
own6 intellectual creation.7
(2) The following in particular are regarded8 to be within the field of literature,
art or science within the meaning of this article:
(a) Written or spoken words,
(b) Musical compositions
(c) Plays and choreographies,
1 The term ‘work’ is used throughout this Code as a general term to denote subject
matter protected by copyright as defined in this article. It does not cover subject matter
protected by what is usually referred to as neighbouring or related rights.
2 ‘Any’ denotes “whatever may be its mode or form of expression or its merit”. There is no
requirement of fixation. An adaptation of a work may qualify as a work itself.
3 The term ‘expression’ indicates the traditional requirement that works be the result of
the author’s personal expression.
4 The term ‘literary, artistic or scientific expressions’, which is inspired by art. 2(1) BC,
circumscribes the domain of copyright, and serves as “Oberbegriff ”.
5 ‘In so far as’ indicates that the requirement of constituting ‘its author’s own, intellectual
creation’ is not merely a condition for the existence of copyright, but also defines its
limits.
6 The Code does not use or define the term original, but in practice it might still be used
to indicate that the production qualifies as a (protected) work.
7 The term ‘ the author’s own intellectual creation’ is derived from the acquis (notably for
computer programs, databases and photographs). It can be interpreted as the “average”
European threshold, presuming it is set somewhat higher than skill and labour. This is
possible if emphasis is put on the element of creation. For factual and functional works,
the focus will be more on a certain level of skill (judgement) and labour, whereas for
productions in the artistic field the focus will be more on personal expression.
8 The categories listed here are merely examples and should not be taken to be exhaustive.
The exemplary list indicates ‘core’ areas of copyright.
9
European_Copyright_Code.indd 9 22-04-2010 17:01:08Chapter 1: Works
(d) Paintings, graphics, photographs and sculptures,
(e) Films,
(f) Industrial and architectural designs,
(g) Computer programs,
(h) Collections, compilations and databases.
(3) The following are not, in themselves9, to be regarded as expressions within
the field of literature, art or science within the meaning of this article:10
a. Facts, discoveries, news and data;11
b. Ideas and theories;
c. Procedures, methods of operation and mathematical concepts.12
Art. 1.2 – Excluded works
The following works are not protected by copyright:
(a) Official texts of a legislative, administrative and judicial nature, including
international treaties, as well as official translations of such texts;
(b) Official documents published13 by the public authorities.14
9 The term ‘as such’ has built up a lot of jurisprudence under the EPC art 52, and is
therefore avoided here.
10 Whereas art. 1.1 (3) designates subject matter that as a matter of principle does not fall
within the domain of copyright, art. 1.2 deals with works that do fall within the domain
of copyright, but are excluded from copyright protection.
11 Cf. art. 10(2) TRIPS: such protection shall not extend to the data or material itself; see
also art. 3(2) Database Directive.
12 Cf. art. 9(2) TRIPS.
13 The term ‘published’ does not imply that a work must formally have been published in
an Official Journal or equivalent. However, secret or confidential information can not
be considered as ‘published’.
14 As to ‘official’ works by private authors, these will be protected until they become
‘official’. Also, questions of moral rights could still arise despite the exclusion.
10
European_Copyright_Code.indd 10 22-04-2010 17:01:08Chapter 2: Authorship and ownership
Art. 2.1 – Authorship
The author of a work is the natural person or group of natural persons who
created it.15
Art. 2.2 – Moral rights
(1) The author of the work has the moral rights.
(2) Moral rights cannot be assigned.
Art. 2.3 – Economic rights
(1) The initial owner of the economic rights in a work is its author.
(2) Subject to the restrictions of article 2.4, the economic rights in a work may
be assigned16, licensed17 and passed by inheritance, in whole or in part.
(3) If the author has assigned economic rights, he shall nonetheless have
a right to an adequate part of the remuneration on the basis of the
provisions in articles 5.2, 5.3, 5.4 and 5.5.
(3) An assignment is not valid unless it is made in writing.
15 In case of films such co-authors include the director, the author of the screenplay and
the author of the dialogue and the composer of music specifically created for use in the
cinematographic or audiovisual work; see art. 2(2) Term Directive.
16 The term ‘assignment’ indicates a cession of economic rights; ownership of the rights is
transferred to another person.
17 The term ‘license’ indicates an act of authorisation (permission) to use the work.
11
European_Copyright_Code.indd 11 22-04-2010 17:01:08Chapter 2: Authorship and ownership
Art. 2.4 – Limits
If the contract by which the author assigns or exclusively licenses the
economic rights in his work does not adequately specify (a) the amount of the
author’s remuneration, (b) the geographical scope, (c) the mode of exploitation
and (d) the duration of the grant18, the extent of the grant shall be determined
in accordance with the purpose envisaged in making the grant.19
Art. 2.5 – Works made in the course of employment
Unless otherwise agreed, the economic rights in a work created by the author
in the execution of his duties or following instructions given by his employer20
are deemed to be assigned to the employer.
Art. 2.6 – Works made on commission
Unless otherwise agreed, the use of a work by the commissioner of that work
is authorised to the extent necessary to achieve the purposes for which the
commission was evidently made.21
18 The term ‘grant’ is used here as an overarching term encompassing both assignment and
license.
19 Art. 2.4 is meant to protect authors against overbroad grants of rights. It does so
by giving a primary rule and a subsidiary (default) rule. The primary rule requires
adequate specification in the granting contract of the core features of such a contract:
remuneration, geographical scope, modes of exploitation and duration of the grant.
Failure to comply with the rule of specificity will not however nullify the grant, but
will result in the default rule becoming operational. Under the default rule any grant
of copyright is to be interpreted in accordance with the grant’s underlying purpose
(purpose-of-grant rule).
20 The scope of the assignment will therefore largely depend on the contract of
employment between the author and the employer, as determined by applicable law.
The general rules on assignment of art. 2.3 and 2.4 do not apply here.
21 Such purposes must have been known to, or obvious to the author, for example, from
the terms of the commissioning agreement.
12
European_Copyright_Code.indd 12 22-04-2010 17:01:08Chapter 3: Moral rights
Art. 3.1 – General
The moral rights in a work are the rights of divulgation, attribution and
integrity, as provided for in articles 3.2, 3.3 and 3.4.
Art. 3.2 – Right of divulgation
(1) The right of divulgation is the right to decide whether, and how the work is
disclosed for the first time.
(2) This right shall last for the life of the author.22
Art. 3.3 – Right of attribution
(1) The right of attribution comprises:
(a) the right to be identified as the author23, including the right to choose
the manner of identification24, and the right, if the author so decides,
to remain unidentified.
(b) the right to require that the name or title which the author has given to
the work be indicated.
22 It was generally felt by the members of the group that not all moral rights merit the
same term of protection, and that the right of divulgation might expire following the
death of the author, whereas other moral rights could remain protected for a certain
period post mortem. Note however that general rights of privacy might still prevent
unauthorized publication post mortem of unpublished works.
23 The existence of the right of attribution cannot depend on any condition, such as a
claim or assertion by the author.
24 The manner the author chooses to be identified should take into account the constraints
resulting from the type of work involved and the customary practices regarding
attribution in his field.
13
European_Copyright_Code.indd 13 22-04-2010 17:01:08Chapter 3: Moral rights
(2) This right shall last for the life of the author and until [...] years after his
death.25 The legal successor as defined by the laws on inheritance26 is
entitled to exercise the rights after the death of the author.
Art. 3.4 – Right of integrity
(1) The right of integrity is the right to object to any distortion, mutilation
or other modification, or other derogatory action in relation to the work,
which would be prejudicial to the honour or reputation of the author.
(2) This right shall last for the life of the author and until [...] years after his
death. The legal successor as defined by the laws on inheritance27 shall be
entitled to exercise the right after the death of the author.
Art. 3.5 – Consent
The author can consent28 not to exercise his moral rights.29
Such consent must be limited in scope30, unequivocal31 and informed.32,33
25 See note 22.
26 As determined by the laws of inheritance, either the heirs or a person especially
appointed by the author can exercise these moral rights.
27 Id.
28 Consent by the author to waive his moral right must be certain. This consent can result
from a written instrument or may be implied if no other interpretation of the author’s
will can be deduced from the written instrument or from the particular circumstances
of the case.
29 If the author consents not to exercise his moral rights, the action consented to will not
constitute an infringement.
30 General waivers are not possible, but an author may consent to particular uses.
31 Consent in writing should be regarded as evidence that the consent was unequivocal.
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European_Copyright_Code.indd 14 22-04-2010 17:01:08Chapter 3: Moral rights
Art. 3.6 – Interests of third parties 32,33
(1) The moral rights recognised in article 3.1 will not be enforced in situations
where to do so would harm the legitimate interests of third parties34 to
an extent which is manifestly disproportionate to the interests of the
author.35,36
(2) After the author’s death, the moral rights of attribution and integrity
shall only be exercised in a manner that takes into account the interests
in protecting the person of the deceased author, as well as the legitimate
interests of third parties.
32 Consent is only informed where full information is disclosed to the author (or a
representative or agent thereof) as to the way in which the work will be used, including
details of works which will be used in association with the work. The waiver may result
from a collective negotiation by third parties representing the interests of the authors,
such as an author’s union.
33 The condition of informed consent will weigh particularly heavy in cases of standard
contracts stipulating a far reaching consent of the author not to exercise moral rights.
34 The notion of ‘interests of third parties’ covers interests of any private party, such as a
publisher, as well of the public in general which, for instance, has a legitimate interest in
improving the access to the work.
35 For example, particularly the integrity right would be attenuated in relation to works of
low authorship.
36 This ‘abus de droit’ principle also applies to economic rights. If it is specifically
mentioned here, this is because, unlike the case of the economic rights, the principle is
not already elabourated in a body of limitations.
15
European_Copyright_Code.indd 15 22-04-2010 17:01:09Chapter 4: Economic rights
Art. 4.1 – General
(1) The economic rights in a work are37 the exclusive rights to authorise or
prohibit the reproduction, distribution, rental38, communication to the
public and adaptation of the work, in whole or in part39, as provided for in
articles 4.2, 4.3, 4.4, 4.5 and 4.6.
(2) The economic rights expire [...] years40 after the year of the author’s death.
Art. 4.2 – Right of reproduction
The right of reproduction is the right to reproduce the work in any manner
or form, including temporary reproduction insofar41 as it has independent42
economic significance.43
37 This article comprises an exhaustive (closed) list of the economic rights. Note, however,
that ‘communication to the public’ is an open concept, and art. 4.5 comprises a non-
exhaustive (open) list of acts falling under that concept.
38 As explained in the Introduction, the public lending right and the artists’ resale right
(droit de suite) are not included here, because these are remuneration rights that do not
qualify as exclusive economic rights and as such remain outside the scope of the Code.
39 The phrase ‘in whole or in part’ implies that the use of a part of a protected work
constitutes a restricted act or, as the case may be, an infringement, if this part in and by
itself qualifies for copyright protection.
40 It was generally felt by the members of the Group that the current term of protection of
the economic rights is too long. However views diverged as to the appropriate term.
41 The phrase ‘insofar as it has independent economic significance’ only refers to
temporary reproductions.
42 The term ‘independent’ means independent from a permitted use (i.e. permitted either
by law or authorised by the right holder).
43 This carve-out absorbs the rule of art. 5(1) InfoSoc Directive. Note that it does not
determine the burden of proof whether or not the reproduction in question is or is not
temporary and/or has no independent economic significance.
16
European_Copyright_Code.indd 16 22-04-2010 17:01:09Chapter 4: Economic rights
Art. 4.3 – Right of distribution
(1) The right of distribution is the right to distribute to the public the original
of the work or copies thereof.
(2) The right of distribution does not apply to the distribution of the original
or any copy that has been put on the market by the holder of the copyright
or with his consent.44
Art. 4.4 – Right of rental
(1) The right of rental is the right to make available the original of the work
or copies thereof for use for a limited period of time for profit making
purposes.
(2) The right of rental does not extend to the rental of buildings and works of
applied art.
Art. 4.5 – Right of communication to the public
(1) The right of communication to the public is the right to communicate the
work to the public, including but not limited to45public performance46,
broadcasting47, and making available to the public of the work in such a
way that members of the public may access it from a place and at a time
individually chosen by them.
44 This rule of exhaustion has to be interpreted coherently with the same concept in the
law of industrial property.
45 The right of communication to the public is divided into three main categories, but the
list is open-ended and non-exhaustive.
46 Public performance also includes public recitation, “public communication by
loudspeaker or any other analogous instrument transmitting, by signs, sounds or
images [of the broadcast of the work]” (art. 11bis (1) (iii) BC) and public display (i.e. on a
screen).
47 The term ‘broadcasting’ includes rebroadcasting and retransmitting, by wireless and
wired (cable) means.
17
European_Copyright_Code.indd 17 22-04-2010 17:01:09Chapter 4: Economic rights
(2) A communication of a work shall be deemed to be to the public if it is
intended for a plurality of persons, unless such persons are connected by
personal relationship.
Art. 4.6 – Right of adaptation
The right of adaptation is the right to adapt, translate, arrange or otherwise
alter the work.
18
European_Copyright_Code.indd 18 22-04-2010 17:01:09Chapter 5: Limitations48
Art. 5.1 – Uses with minimal economic significance
The following uses with minimal economic significance are permitted without
authorisation, and without remuneration:49
(1) the making of a back-up copy of a work by a person having a right to use it
and insofar as it is necessary for that use;
48 For the sake of clarity, limitations have been brought together under several categories.
The categories do not however prejudice as to the question, what interests do, or should,
in a particular case or even in general, underlie the limitation. In practice, this might
be a mixture of several of the interests indicated. The weakness in a particular case
of the interest under which the applicable limitation has been categorized does not
prejudice as to the (non-)applicability of the limitation. However, the concrete examples
enumerated under those categories do have a normative effect, since art. 5.5 extends
the scope of the specifically enumerated limitations by permitting other uses that are
similar to any of the uses enumerated, subject to the operation of the three-step test.
In this way, Chapter 5 reflects a combination of a common law style open-ended system
of limitations and a civil law style exhaustive enumeration. On the one hand, the
extension to similar uses provides the system with a flexibility which is indispensable
in view of the fact that it is impossible to foresee all the situations in which a limitation
could be justified. On the other hand, the possibility of flexibility is narrowed down
in two ways. Firstly, the extension applies to uses ‘similar’ to the ones expressly
enumerated. Thus, a certain normative effect is bestowed on these examples; the courts
can only permit uses not expressly enumerated insofar as a certain analogy can be
established with uses that are mentioned by the Code. Secondly, such similar uses may
not conflict with the normal exploitation of the work and not unreasonably prejudice
the legitimate interests of the author or rightholder, taking account of the legitimate
interests of third parties.
49 With regard to the question, whether a limitation permits the use act in question or
not, the Code does not distinguish between analogue and digital uses. However, a
distinction might be made in respect of the amount of remuneration due for certain
uses; see note 57.
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European_Copyright_Code.indd 19 22-04-2010 17:01:09Chapter 5: Limitations
(2) the incidental inclusion of a work in other material;
(3) use in connection with the demonstration or repair of equipment, or the
reconstruction of an original or a copy of a work.
Art. 5.2 – Uses for the purpose of freedom of expression and information
(1) The following uses for the purpose of freedom of expression and
information are permitted without authorisation and without
remuneration, to the extent justified by the purpose of the use:
(a) use of a work for the purpose of the reporting of contemporary events;
(b) use of published articles on current economic, political or religious
topics or of similar works broadcast by the media, provided that such
use is not expressly reserved;
(c) use of works of architecture or sculpture, made to be located
permanently in public places;
(d) use by way of quotation of lawfully disclosed works;50
(e) use for the purpose of caricature, parody or pastiche.
(2) The following uses for the purpose of freedom of expression and
information are permitted without authorisation, but only against
payment of remuneration and to the extent justified by the purpose of the
use:
(a) use of single articles for purposes of internal reporting within an
organisation;
(b) use for purposes of scientific research.
Art. 5.3 – Uses permitted to promote social, political and cultural objectives
(1) The following uses for the purpose of promoting social, political and
cultural objectives are permitted without authorisation and without
remuneration, and to the extent justified by the purpose of the use:
50 Although quotations normally will only imply partial use of a work, it may in certain
cases be permitted to quote the entire work.
20
European_Copyright_Code.indd 20 22-04-2010 17:01:09Chapter 5: Limitations
(a) use for the benefit of persons with a disability, which is directly related
to the disability and of a non-commercial nature;
(b) use to ensure the proper performance of administrative, parliamentary
or judicial proceedings or public security;51
(c) use for the purpose of non-commercial archiving by publicly accessible
libraries, educational establishments or museums, and archives.52
(2) The following uses for the purpose of promoting important social,
political and cultural objectives are permitted without authorisation, but
only against payment of remuneration, and to the extent justified by the
purpose of the use:
(a) reproduction by a natural person for private use, provided that the
source from which the reproduction is made is not an obviously
infringing copy;
(b) use for educational purposes.
Art. 5.4 – Uses for the purpose of enhancing competition
(1) The following uses for the purpose of enhancing competition are
permitted without authorisation and without remuneration, to the extent
justified by the purpose of the use:
(a) use for the purpose of advertising public exhibitions or sales of artistic
works or goods which have been lawfully put on the market;53
(b) use for the purpose of reverse engineering in order to obtain access to
information, by a person entitled to use the work.
(2) Uses of news articles, scientific works, industrial designs, computer
programs and databases are permitted without authorisation, but only
51 The reporting of administrative, parliamentary or judicial proceedings is covered by art.
5.2 (1) (a).
52 See art. 5 (2) (c) Information Society Directive. It is understood that the exception only
covers reproductions made in order to preserve documents, but not any subsequent
commercial exploitation of the works that have been archived.
53 The means of advertising as mentioned in art. 5.4 (1) should be normal and
proportionate for the business.
21
European_Copyright_Code.indd 21 22-04-2010 17:01:09Chapter 5: Limitations
against payment of a negotiated remuneration54, and to the extent
justified by the purpose of the use, provided that:
(i) the use is indispensable to compete on a derivative market;
(ii) the owner of the copyright in the work has refused to license the use
on reasonable terms, leading to the elimination of competition in the
relevant market and
(iii) the use does not unreasonably prejudice the legitimate interests of the
owner of the copyright in the work.
Art. 5.5 – Further limitations
Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1)
is permitted provided that the corresponding requirements of the relevant
limitation are met and the use does not conflict with the normal exploitation
of the work and does not unreasonably prejudice the legitimate interests of
the author or rightholder, taking account of the legitimate interests of third
parties.55
Art. 5.6 – Relation with moral rights
(1) Uses under this chapter are permitted without prejudice to the right of
divulgation under article 3.2.56
(2) Uses pursuant to articles 5.2, 5.3, 5.4 and 5.5 are permitted without
prejudice to the right of attribution under article 3.3, unless such
attribution is not reasonably possible.
54 The term ‘negotiated remuneration’ means that the compulsory license fee is to be
negotiated in individual cases, and therefore does not imply a role for collective rights
management.
55 See note 48. Note that art. 5.5 does not allow new limitations by blending the criteria of
articles 5.1 to 5.3.
56 This provision does not prejudice as to the direct application of the fundamental right of
freedom of expression. It is however understood that only in highly exceptional cases,
such as quotation in the press of important secret documents, there could be a ground
for such a correction.
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(3) Uses pursuant to articles 5.1, 5.2, 5.3 and 5.5, are permitted without
prejudice to the right of integrity under article 3.4, unless the applicable
limitation allows for such an alteration or the alteration is reasonably due
to the technique of reproduction or communication applied by the use.
Art. 5.7 – Amount and collection of remuneration
(1) Any remuneration provided for under this chapter shall be fair and
adequate.57
(2) A claim for remuneration according to articles 5.2(2) and 5.3(2) can only
be exercised by a collecting society.
Art. 5.8 – Limitations prevailing over technical measures58
In cases where the use of copyright protected works is controlled by technical
measures, the rightholder shall have an obligation to make available means
of benefiting from the uses mentioned in articles 5.1 through 5.5 with the
exception of art. 5.3(2)(a), on condition that:
(a) the beneficiary of the limitation has lawful access to the protected work,
(b) the use of the work is not possible to the extent necessary to benefit from
the limitation concerned, and
(c) the rightholder is not prevented from adopting adequate measures
regarding the number of reproductions that can be made.
57 While no distinction of analogue and digital use acts shall be made with regard to the
question of the permission of the use act as such, it seems appropriate to differentiate
the amount of remuneration due depending on the economic significance of the use
act to the user. It should be noted that the use can be made by a third party on behalf
of beneficiaries of these limitations, but that in such cases the remuneration to be paid
may be higher than if it is made by the privileged individual itself.
58 Note that the Code does not otherwise deal with the legal protection of technical
protection measures.
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